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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

DATED THIS THE 09TH DAY OF OCTOBER , 2017

BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR

R.S.A. NO.5385/2012 (PAR, DEC & INJ)

BETWEEN: MONAKKA SHINDE W/O SOMANATH SHINDE, AGE: 76 YEARS, OCC: HOUSEWORK, R/O: 1917, KADOLKAR GALLI, BELGAUM.

… APPELLANT

(BY SRI.RAGHAVENDRA SRIVATSA, SRI. PRASHANT F GOUDAR AND SRI. VEERESH R BUDIHAL, ADVOCATES) AND: 1. MARUTI SHINDE

S/O SOMANATH SHINDE, AGE: 71 YEARS, OCC: RETIRED, R/O: FLAT NO. D-2, LA- SANTA MARIA, VASUDEO PEDNEKAR MARG, OPP. BOHIWADA P.S., PAREL, MUMBAI AND ALSO R/O. 1917, KADOLKAR GALLI, BELGAUM

2. RAMESH SHINDE S/O. SOMANATH SHINDE,

AGE: 57 YEARS, OCC: BUSINESS, R/O: PLOT NO.252, BUDA SCHEME,

R

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NEAR HINDALAGA TEMPLE, BELGAUM.

… RESPONDENTS (BY SRI. SACHIN S MAGADUM, ADV. FOR R1) (SRI. GAUTAM SHRIDHAR B BARADWAJ, ADV. FOR R2)

THIS APPEAL IS FILED UNDER SECTION 100 R/W.

ORDER XLII RULE 1 OF C.P.C., 1908., AGAINST THE

JUDGMENT AND DECREE DATED 13.01.2012 PASSED IN

R.A.NO.117/2010 ON THE FILE OF THE PRINCIPAL

DISTRICT JUDGE, BELGAUM, ALLOWING THE APPEAL,

FILED AGAINST THE JUDGMENT DATED 07.01.2010 AND

THE DECREE PASSED IN O.S.NO.370/2004 ON THE FILE

OF THE I ADDL. CIVIL JUDGE (SR.DN), BELGAUM,

DECREEING THE SUIT FILED FOR REOPENING OF

PARTITION, DECLARATION AND INJUNCTION.

THIS APPEAL HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 10.08.2017, AND COMING ON FOR

PRONOUNCEMENT THIS DAY, THIS COURT DELIVERED

THE FOLLOWING : -

JUDGMENT

This appeal under Section 100 of C.P.C. is by the

plaintiff in the suit, O.S. 370/2004, on the file of I Addl.

Senior Civil Judge, Belagavi. Since the suit was decreed,

respondent No.1 herein preferred an appeal, R.A.117/2010

to the District Court, Belagavi. The said appeal, having been

allowed and the judgment and decree of the trial Court set

aside on 13.01.2012, the plaintiff, aggrieved by the said

judgment, has filed this second appeal.

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2. By referring to the parties with respect to their

positions in the suit, pleadings are summarized as below:-

3. The plaintiff is the stepmother of defendant No.1

and natural mother of defendant No.2. As the plaintiff states,

she is the second wife of one Somanath Shinde. The 1st

defendant’s mother died when he was a child; Somanath

married the plaintiff after his first wife died and she brought

up defendant no.1 since his childhood, as her own son.

According to plaintiff, even before her marriage, she was

managing agricultural operations; she was growing and

purchasing paddy and processing it into rice for being

marketed. She had good source of income from her

independent business. Besides this, she had been given gold

jewellery at the time of her marriage and other occasions.

Her husband, Somanath was working in Regional Transport

Office, Belagavi and his salary income was just sufficient to

maintain the family and that he had spent a lot for the

medical treatment of his first wife; he had no surplus funds

to purchase property. The plaintiff states that the properties

at items A, B, C, D and E as described in the plaint were

acquired by her and two other items, F and G are the joint

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family properties of her husband. She also states that after

the death of her husband on 26.08.1979, she along with her

son i.e., defendant No.1, obtained loan from the Belagavi

Pioneer Urban Co-operative Bank Ltd., and constructed a

commercial complex at plaint items D, E, F and G properties.

4. It is the further case of plaintiff that defendant

No.1 joined the services of Maharastra Government as a

police officer and that her son i.e., the second defendant

started a printing press at Belagavi. The defendants, very

particularly, the defendant No.1 started behaving

indifferently. They put pressure on her to effect partition of

the suit properties. She did not agree for partition of her

self-acquired property, but the defendants assured of giving

her 1/3rd equal share and also an amount of Rs.50,000/- for

her maintenance. Therefore, she agreed for effecting division,

and thus, on 09.10.2002, the partition deed came into

existence. She was under the impression that she had been

given equal 1/3rd share. The defendants also did not give her

Rs.50,000/-. In the month of May 2004, defendant No.1

tried to dispossess her illegally from her house at Kodalkar

galli, Belagavi. He told her that the said house belonged to

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him exclusively and that she had no right, title or interest in

that house. Immediately, she approached the elderly persons

of her society and came to know that both the defendants

had obtained her thumb impression on the partition deed by

misrepresenting to her that 1/3rd equal share had been given

to her. She came to know about fraud only then, and

therefore, she instituted the suit seeking a declaration that

the partition deed dated 09.10.2002 did not bind her and

that it was null and void as it was obtained fraudulently; for

awarding 1/3rd equal share in the properties and granting

perpetual injunction restraining the defendants from

interfering with her peaceful possession and enjoyment of

suit property.

5. The defendant No.1 in his written statement

disputes the correctness of relationship as has been stated

in the plaint. Although, he admits that he is the stepson of

the plaintiff, he states that the plaintiff is the third wife of his

father. After the death of his mother, Sundara Bai, he states

that his father married one Krishana Bai with whom the

marriage did not last long and it ended in a divorce.

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Thereafter, his father married the plaintiff and at that time,

he was a boy of 8-10 years old.

6. The defendant No.1 disputes that some of the items

of suit property to be her self-acquisitions. He contends that

his mother’s health condition was not so much bad that his

father had to incur huge medical expenses. In fact his

mother was taken care of by her parents during her

sickness. His father, being an employee of R.T.O., Belagavi

had decent income, he was able to manage the family.

Actually, his grandmother Dhudhakka was into the business

of paddy processing and the plaintiff was assisting her. The

plaintiff did not have her own income. Entire family was

being managed by Dhudhakka; she was the head of the

family practically. All the properties were acquired by the

joint efforts of his father Somanath and Dhudhakka. The

plaintiff was fully aware that the suit properties were the

joint family properties. Some of the suit properties were

purchased by his father in the names of his wife i.e., plaintiff

and Dhudhakka only to overcome the procedural hurdles of

obtaining permission from the Government. She voluntarily

agreed for division as she knew very well that she had no

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independent and exclusive right over the properties that

were acquired in her name. The terms of partition were

finalized in the presence of one Monappa Omanna Kesarkar

and S.S.Muchandi. The plaintiff herself opted to receive an

amount of Rs.50,000/- in one lumpsum in lieu of her share

in the family property and she acknowledged the receipt of

this amount. There was no fraud. Defendant No.2 colluded

with the plaintiff in getting the suit filed. He has denied the

allegations against him that he tried to dispossess the

plaintiff illegally from the house where she was staying. He

has stated that the plaintiff voluntarily vacated the house in

the month of May-2004 and handed over the keys to

Monappa Kesarkar.

7. Defendant No.2 has virtually supported the plaintiff

though he has filed separate written statement, in which he

has also contended that the properties at Mumbai should

have been included in the suit.

8. On 19.09.2013 this second appeal was admitted to

consider the following substantial questions of law.

1) Whether the lower appellate Court was

justified in setting aside the judgment and

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decree passed by the trial Court without

considering the manner in which Ex.D1- Deed

of Partition is registered?

2) Whether the lower appellate Court was

justified in holding that no fraud is committed

by defendants 1 and 2 against plaintiff in

execution of Ex.D.1- Deed of Partition wherein

some of the properties subjected to partition

were absolute properties of plaintiff?

9. The trial Court came to conclusion to decree the

suit for the reason that defendant no.1, who adduced

evidence as D.W.1 admitted in his cross-examination that

some of the properties were purchased in the name of

plaintiff, that share allotted to her was not proper and

correct, that only a meager amount of Rs.50,000/- was given

to her and that there was no equitable partition between the

defendants and the plaintiff. Referring to the evidence of

D.W.2 and D.W.3, the trial Court held that though they

stated that there was no fraud or misrepresentation, no

ordinary prudent man would agree to receive only

Rs.50,000/- and just a right of residence when there were

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huge joint family properties. Ascribing these reasons, the

trial Court held that the partition deed dated 09.10.2002

was null and void and ordered for reopening of partition.

10. The First Appellate Court, upon re-appreciation

of evidence, held that the document dated: 09.10.2002 was a

family settlement. To see that differences among the plaintiff

and the defendants were settled, they referred the matter to

Panchayatdars on whom they had confidence. The parties

agreed to the arrangement suggested by the Panchayatdars

and Ex.D.1 was the result of such a settlement. Mere

unequal distribution was no ground to impeach that family

arrangement. The appeal was ultimately allowed.

11. The learned counsel for the appellant/plaintiff

argued that the First Appellate Court has not appreciated

the facts and evidence properly and it gives rise to a

substantial question of law. He argued that this court can

re-appreciate the evidence if the first appellate court has

reached wrong conclusions and drawn erroneous inferences.

He garners support from the decisions of the Supreme Court

in the cases of Krishna Mohan Kul Alias Nani Charan Kul

and another v. Pratima Maity and Others [(2004) 9 SCC

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468] and Pratima Chowdhury v. Kalpana Mukherjee and

another [(2014) 4 SCC 196].

12. The learned counsel for respondent/defendant

No.1 argued that there is no scope for appreciation of

evidence in the second appeal; if the First Appellate Court

has re-appraised the evidence by applying its independent

mind, those findings cannot be interfered with even if they

are found to be wrong.

13. As regards this argument, it has to be stated

that the findings of the First Appellate Court, on facts,

cannot be ordinarily interfered with if the First Appellate

Court is found to have appreciated the evidence

independently. However, if perverse approach in appreciation

of facts and evidence is apparent, it gives rise to substantial

question of law, and there is scope for interfering with facts

even in second appeal.

14. The appellant’s counsel tries to make out a case

by arguing that the First Appellate Court adopted a wrong

approach by throwing the burden on the plaintiff to prove

fraud and misrepresentation in regard to execution of

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partition deed dated 09.10.2002. He argued that the

plaintiff is an aged woman and illiterate. The defendants

were in a position to dominate her will. There existed a

fiduciary relationship between the plaintiff and the

defendants, and therefore, the burden should have been cast

on the defendants to prove that they acted fairly and that

there was no misrepresentation or undue influence or

pressure on the plaintiff. He has placed reliance on 1)

Poosathurai v. Kannappa Chettiar and others (AIR 1920

PC 65), 2) Krishna Mohan Kul Alias Nani Charan Kul

and another v. Pratima Maity and Others [(2004) 9 SCC

468], 3) A. Venkappa Bhatta and others v. Gangamma

and others (AIR 1988 Ker 133), 4) Sher Singh and

others v. Pirthi Singh and others (AIR 1975 All 259), 5)

Guljan Bibi v. Nazir-uddin Mia (AIR 1975 Gau 30), and 6)

Smt. Chinnamma and others v. The Devanga Sangha

and others (AIR 1973 Mysore 338).

15. Needless to say that whenever plaintiff alleges

fraud, misrepresentation and undue influence, the burden is

on him/her to prove this, if he or she seeks to cancel or set

aside a document that has affected his or her interest, this is

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the general principle. But an exception to this general

principle is that though a party to a suit alleges fraud or

misrepresentation or undue influence, the burden lies on the

opponent to prove that the transaction was fair throughout,

if the party who makes allegation of fraud etc., stands in

fiduciary relationship with his/her opponent. Fiduciary

relationship arises where one person places complete

confidence in another in regard to a particular transaction or

one’s general affairs or business. What is the responsibility

of a person who is trusted by another is very well explained

by the Supreme Court in the case of Pratima Chowdhury v.

Kalpana Mukherjee and another, [(2014) 4 SCC 196]. At

page 239, it is observed as below:-

“A person standing in a fiduciary relation to

another has a duty to protect the interest given to

his care and the Court watches with jealousy all

transactions between such persons so that the

protector may not use his influence or the

confidence to his advantage.”

16. This rule is equally applicable to an old,

illiterate, ailing person, who is unable to comprehend the

nature of the document or contents thereof. Even in the

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other decisions cited by the learned counsel for appellant on

this aspect, same is the principle; there is no need to refer to

all the decisions to maintain brevity.

17. While the proposition that the onus is always on

the person in whom confidence is reposed by another to

prove the transaction is fair and conscionable, is well

accepted, to apply this principle wherever it emerges, it is

necessary that existence of such kind of relationship must

first be established. The party complaining of this must show

that he/she reposed absolute faith or confidence in another.

Mere nearness of relationship does not give rise to a

presumption about existence of fiduciary relationship.

Implicit circumstances as to existence of fiduciary relation

may be demonstrated. It must be pleaded first and then

proved. In fact in Pratima Chowdhury (supra), it is further

held in page 239 as below:-

“When the party complaining shows such

relation, the law presumes everything against

the transaction and the onus is cast against the

person holding the position of confidence or

trust to show that the transaction is perfectly

fair and reasonable, that no advantage has

been taken of his position.”

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18. In Subhas Chandr Das Mushib v. Ganga

Prasad Das Mushib and others, (1967) 1 SCR 331, the

Hon’ble Supreme Court has held as below:-

“8. It must also be noted that merely because

the parties were nearly related to each other no

presumption of undue influence can arise. As

was pointed out by the judicial committee of

the Privy Council in Poosathurai V/s.

Kannappa Chettiar and others.

“It is a mistake (of which there are a good many

traces in these proceedings) to treat undue

influence as having been established by a proof

of the relations of the parties having been such

that the one naturally relied upon the other for

advice, and the other was in a position to

dominate the will of the first in giving it. Up to

that point ‘influence’ alone has been made out.

Such influence may be used wisely, judiciously

and helpfully. But whether by the law of India

or the law of England, more than mere influence

must be proved so as to render influence, in the

language of the law, ‘undue’. ”

(underlining by me)

19. Later, the Hon’ble Supreme Court, in the case of

M. Rangasamy v. Rengammal and others (AIR 2003 SC

3120) had an occasion to refer to the judgment in the case of

Subhas Chandr Das Mushib v. Ganga Prasad Das

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Mushib and others to hold that mere existence of close

relationship will not lead to a presumption of undue

influence. It is held as below :

“14. The only issue out of seven which were

framed by the learned Subordinate Judge at the

trial of the suit which has any bearing on this

point Issue No. 5. This reads:

"Is the deed of gift by the grandfather to

defendant 1 valid and true : If so, is the

suit maintainable without setting aside

the deed of gift?"

15. It will be noted at once that even the

expression "undue influence" was not used in the

issue. There was no issue as to whether the

grandfather was a person of unsound mind and

whether he was under the domination of the

second defendant.”

(underlining by me)

20. Reference to a Pratima Chouwdhary’s case

(supra) must be made again for, in this decision three

different stages involved in proving the case of undue

influence has been explained by making a reference to earlier

decision of the Hon’ble Supreme Court in the case of Subhas

Chandr Das Mushib’s case (supra) and of the Privy Council

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in Raghunath Prasad v. Sarju Prasad (AIR 1924 PC 60),

it is held in page 238 as below:-

“6. Sub-Section (3) of the Section throws the burden of

proving that a contract was not induced by undue

influence on the person benefiting by it when two

factors are found against him, namely, that he is in a

position to dominate the will of another and the

transaction appears on the face of it or on the

evidence adduced to be unconscionable.

7. The three stages for consideration of a case of

undue influence were expounded in Raghunath

Prasad v. Sarju Prasad in the following words: (IA

P.105)

‘… In the first place the relations between the parties

to each other must be such that one is in a position to

dominate the will of the other. Once that position is

substantiated the second stage has been reached,

namely, the issue whether the contract has been

induced by undue influence. Upon the determination

of this issue a third point emerges, which is that of the

onus probandi. If the transaction appears to be

unconscionable, then the burden of proving that the

contract was not induced by undue influence is to lie

upon the person who was in a position to dominate

the will of the other.”

(emphasis supplied)

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21. If the present case is examined in the light of the

above principles, the first thing that appears is that the

plaint is not founded on fiduciary relationship between the

plaintiff and the defendants. The plaintiff is the natural

mother of defendant No.2 and stepmother of defendant No.1.

She is illiterate and aged. Yet, there is no pleading in

conformity with Order VI Rule 4 of C.P.C. that the first

defendant was in a position to dominate the will of plaintiff.

She has not pleaded that she had placed absolute confidence

in him. Indeed she has stated that the defendants

misrepresented to her that she would be given 1/3rd equal

share. She has made this allegation against both the

defendants, but it can be seen very clearly that it is against

first defendant she has a grouse. To appreciate the

arguments of appellant’s counsel that the onus was on

defendant No.1 to establish that the transaction of partition

was very fair, the plaintiff should have firstly pleaded that

she had reposed confidence in him and depended on him in

every transaction and secondly proved it. The defendant

No.1, even according to plaintiff, was staying away being a

police officer in the service of Government of Maharashtra. It

is not her case that she was living with him, so that there

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were chances of her being put to his pressure. There is no

pleading and proof. Moreover, the second defendant, her

natural son, has supported the case of plaintiff. That means

the plaintiff was in a position to obtain the advice of her son,

who is not illiterate. The second defendant also states in his

written statement the defendant No.1 played a major role in

preparation of partition deed and put pressure on him. He

has taken a share equal to that of plaintiff, and this he does

not deny. Suit is for partition; every party is interested.

Having supported his mother, and as he has equal share in

the properties, he could have proved or established that the

defendant No.1 played major role and defrauded him and his

mother. If according to 2nd defendant, his mother’s interest

has not been well protected and equal share was not given to

her as was made known to her before execution of the

partition deed, nothing prevented him from entering the

witness box for proving the fraud played by defendant No.1.

It is true that the trial Court raised the issue in this regard

throwing burden on the plaintiff and that the Appellate

Court has also held that the plaintiff has not proved the said

issue. I do not think, that in the circumstances as discussed

above, the First Appellate Court adopted a wrong approach.

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The judgment of the First Appellate Court shows

independent application of mind while re-appreciating the

evidence. There are no perverse findings. Hence, there is no

need to appreciate the evidence again in this second appeal.

22. The learned counsel for the appellant has raised

another point that construction and interpretation of a

document also gives rise to a substantial question of law. In

this regard he referred to judgment of the Hon’ble Supreme

Court in the case of M. B. Ramesh (Dead) by LRs v. K.M.

Veeraje Urs (Dead) by LRs and others, [(2013) 7 SCC 490].

According to the learned counsel, the partition deed, Ex.D.1,

contains serious flaws and illegalities which invalidate the

document. The First Appellate Court has not noticed this

aspect of the matter, and therefore, argued for examining the

document by considering it as a substantial question of law.

In fact, the two substantial questions of law framed by this

court at the time of admission touch this point.

23. The learned counsel, in this regard, argued that

in Ex.D.1, it is mentioned as “in lieu of her share”. This itself

shows deception. The plaintiff has not been given the

legitimate share that she is entitled to. There is no equal

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distribution of the property among the plaintiff and

defendants 1 and 2. Many items of the suit property are self-

acquisitions of the plaintiff. In fact, even after execution of

Ex.D.1, the title deeds of the properties have been with the

plaintiff. If really, Ex.D.1 is a partition deed, which came into

existence with the consent of the plaintiff, she would have

handed over those documents to the defendants. The very

fact that the originals are with the plaintiff shows that

Ex.D.1 was brought into existence by playing fraud on her.

He also argued that D.W.2 and D.W.3 are interested

witnesses.

24. The learned counsel for the appellant further

argued that Ex.D.1 was executed on 09.10.2002. It was

presented for registration on 10.10.2002. There is no

explanation for the delay. Then the said document was

presented by defendant No.1 on 10.10.2002 at about 5.45

p.m. i.e., after closure of the business hours of the Sub-

Registrar’s office. Ex.D.1 does not contain mandatory

endorsements, as required under Sections 52, 58 and 59 of

the Indian Registration Act (for short “the Act”). An amount

of Rs.50,000/- is separately shown as property in Ex.D.1.

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Actually it is not an identifiable property. The said amount is

also not described as being in the form of bank deposits,

securities etc., so as to say that the said property is in the

form of actionable claim. Therefore, the said amount is

unreal and transient property, which cannot be included for

partition along with immovable properties. The Sub-

Registrar should have been examined. Ex.D.1 is in English

and the plaintiff is illiterate. There is no statement by the

defendants or any of the witnesses that the contents of the

document were read over and explained to the plaintiff.

There is violation of Rule 73 of the Karnataka Registration

Rules, 1965 (for short, ‘the Rules’). For all these reasons,

Ex.D.1 is vitiated and it is null and void. In support of his

arguments, the learned counsel has referred to the judgment

of the Division Bench of this Court in the case of

Kenchawwa v. Amagonda (ILR 1988 KAR 1185) and

Nand Lal Kapur and others v. Lakshamma (since

deceased by LRs and others) (ILR 1967 Mysore 217).

25. The learned counsel for the respondent argued

that Ex.D.1 is basically a deed of family settlement. Though

it is captioned as partition deed, if its contents are read, it

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becomes very clear that it is a settlement between the

plaintiff and defendants. In a settlement, there need not be

equal distribution of the properties. If the parties arrive at a

settlement with regard to distribution of the properties of the

family, it should be given into effect and it has sanctity. In

this regard, he relied on the judgment of the Hon’ble

Supreme Court in the case of Kale and others v. Deputy

Director of Consolidation and others (AIR 1976 SC 807).

26. The learned counsel for the respondent further

argued that the First Appellate Court has given due

weightage to the evidence adduced by D.W.2 and D.W.3.

These two witnesses were the friends of the plaintiff’s

husband Somanath Shinde. Their evidence is impartial and

they have clearly stated that the contents of Ex.D.1 were

explained to the plaintiff by the Sub-Registrar. If the cross-

examination of these two witnesses is perused, it becomes

very clear that they have not been impeached. There was no

need to examine the Sub-Registrar. The document cannot be

doubted just because it was presented on the next day of its

execution. Likewise, if the document was registered at 5.45

p.m. on 10.10.2002, that does not get vitiated. The law does

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not prohibit the registration of the document after office

hours. It does not mean that the parties went to Sub-

Registrar’s office at 5.45 p.m. only, they might have gone

earlier and the Sub-Registrar might have received the

document for registration purpose at that time.

27. With regard to payment of Rs.50,000/- to the

plaintiff, the learned counsel for the respondent argued that

though it was not the property of the family, it was the

amount agreed to be given to the plaintiff and that the

plaintiff in fact had received that amount. When it was a

settlement, necessarily the amount to be given to the plaintiff

should be separately shown in the document. For this

reason, the document does not get vitiated. He further

argued that examining the validity of the document from the

angle of Sections 52, 58 and 59 of the Act arises when one of

the parties to the document disputes it. Here, the plaintiff

does not dispute the execution of Ex.D.1. Her only grievance

is that she is not given equal share. Moreover, making an

endorsement by the Sub-Registrar under Section 58(1)(c) of

the Act with regard to payment arises only if payment is

made before him at the time of registration. In this case

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payment was made earlier. Therefore, Section 58(1)(c) of the

Act is not applicable. The plaintiff herself has stated in the

plaint that all the properties belong to joint family and that

in the cross-examination she has clearly admitted that she

was doing rice business with her mother-in-law and

whatever they acquired from the business income became

the joint family property. The plaintiff cannot claim to be an

exclusive owner. If the original documents of the properties

were retained by her after execution of Ex.D.1, it cannot be

said that there was no settlement without the consent of the

plaintiff. Therefore, he argued that Ex.D.1 must be given into

effect.

28. On this point, it is to be held that certainly the

interpretation and construction of a document gives rise to

substantial question of law. When one party puts forward a

document for asserting his right, and the same document is

assailed by another party, to know the true purport of the

document, it should be interpreted. The Hon’ble Supreme

Court in the case of M. B. Ramesh (Supra) has held as

below:-

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“16. We may, however, note in this behalf that

as held by a Constitution Bench of this Court in

Chunilal V. Mehta & Sons Ltd. v. Century Spg. & Mfg.

Co. Ltd., it is well settled that the construction of a

document of title or of a document which is the

foundation of the rights of parties, necessarily raises

a question of law. That apart, as held by a Bench of

three Judges in Santosh Hazari v. Purushottam

Tiwari, whether a particular question is a substantial

question of law or not, depends on the facts and

circumstances of each case. When the execution of

the will of Smt Nagammanni and construction

thereof was the subject-matter of consideration, the

framing of the question of law cannot be faulted.

Recently, in Union of India v. Ibrahim Uddin, this

Court referred to various previous judgments in this

behalf and clarified the legal position in the following

words:”

29. Before interpreting Ex.D.1, it is necessary to

state here that the plaintiff may have stated in the plaint

that she was doing rice business and that from her business

income, she purchased in her name, some of the items of the

suit property. But in the cross-examination, she has clearly

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given answers that her mother-in-law was managing the

affairs of the family during her lifetime, that she (mother-in-

law) was doing rice polishing business and that she (plaintiff)

was also doing business with her (mother-in-law), that the

income derived from the business was kept in the joint

account of the family, and that her mother-in-law used to

keep the money in the joint account of the family and that

from the income of the rice business, they purchased some

of the properties. So these answers of P.W.1, the plaintiff,

make it very clear that she cannot claim exclusive right over

some of the items of the suit property. The First Appellate

Court has considered this aspect of the matter. (Para 14 of

the judgment of the First Appellate Court).

30. Ex.D.1 needs to be examined from the angle of

applicability of Sections 52, 58 and 59 of the Act. Section 52,

58 and 59 of the Act are extracted here as below:-

52. Duties of registering officers when

document presented. - (1)(a) The day, hour and

place of presentation, [the photographs and finger

prints affixed under Section 32A], and the

signature of every person presenting a document

for registration, shall be endorsed on every such

document at the time of presenting it;

: 27 :

(b) a receipt for such document shall be given by

the registering officer to the person presenting the

same; and

(c) subject to the provisions contained in Section

62, every document admitted to registration shall

without unnecessary delay be copied in the book

appropriated therefor according to the order of its

admission.

(2) All such books shall be authenticated at such

intervals and in such manner as is from time to

time prescribed by the Inspector-General.

58. Particulars to be endorsed on documents

admitted to registration. - (1) On every

document admitted to registration, other than a

copy of a decree or order, or a copy sent to a

registering officer under Section 89, there shall be

endorsed from time to time the following

particulars, namely:-

(a) the signature and addition of every person

admitting the execution of the document, and, if

such execution has been admitted by the

representative, assign or agent of any person, the

signature and addition of such representative,

assign or agent;

(b) the signature and addition of every person

examined in reference to such document under

any of the provisions of this Act; and

: 28 :

(c) any payment of money or delivery of goods

made in the presence of the registering officer in

reference to the execution of the document, and

any admission of receipt of consideration, in

whole or in part, made in his presence in

reference to such execution.

(2) If any person admitting the execution of a

document refuses to endorse the same, the

registering officer shall nevertheless register it,

but shall at the same time endorse a note of such

refusal.

59. Endorsements to be dated and signed by

registering officer.-

The registering officer shall affix the date and his

signature to all endorsements made under

Sections 52 and 58, relating to the same

document and made in his presence on the same

day.

31. Perusal of Ex.D.1 shows compliance of Section

52 of the Act being there. Even compliance of Section 58 (1)

(a) & (b) of the Act is very much forthcoming. With regard to

compliance of Section 58 (1) (c) of the Act, it has to be stated

that endorsement by the registering officer is necessary

when payment of money or delivery of goods is made in his

presence. Ex.D.1 shows that amount of Rs.50,000/- was not

paid to the plaintiff in the presence of the Sub-Registrar. It

: 29 :

was paid, probably at the time of execution of Ex.D.1 on

09.10.2002. The plaintiff has acknowledged the receipt of

Rs.50,000/-. Therefore, compliance under Section 58(1)(c) of

the Act was not necessary. The signature of the registering

officer with date can be seen, therefore there is compliance of

Section 59 of the Act.

32. Rule 73 of the Rules states that it is not the duty

of the registering officer to enquire into the validity of a

document presented before him for registration or to attend

to any written or verbal protest against the registration of a

document, if the execution is admitted. But only requirement

is if the executants are unable to read, the document shall

be read out and if necessary, explained to them. If the

document is in a language which the executants do not

understand, it must be interpreted to them. In my opinion,

no doubt a duty is cast on the Sub-Registrar to explain the

contents of the document presented for registration to a

party who is illiterate or one who does not know the

language of the document, but the whole document does not

become vitiated for non-compliance of this. If the party is

aware of the contents of document before it was presented

: 30 :

for registration, non-compliance of Rule 73(i) of the Rules

need not be given any importance. In the present case, the

evidence of P.W.1 shows that even 15 days before the

execution of Ex.D.1, she knew that properties would be going

to be partitioned. The witnesses D.W.2 and D.W.3 have

spoken very clearly in their examination-in-chief itself that

Sub-Registrar explained the contents of the document to the

plaintiff. Particularly on this aspect there is no cross-

examination. They have also stated very clearly that the

entire talks were held in the presence of the plaintiff and the

defendants. They have stated that they were the friends of

Somanath Shinde, the husband of the plaintiff. Their

evidence discloses that they are disinterested in any of the

parties. There is no substance in the argument of the

learned counsel that they are interested witnesses. They

have not been impeached in the cross-examination. It may

be true that Ex.D.1 does not disclose an endorsement by the

Sub-Registrar that he explained the contents of Ex.D.1 to

plaintiff, but when it is very much forthcoming from the

evidence that she knew what was the nature of the

settlement going to take place, absence of endorsement by

the Sub-Registrar does not make the document illegal.

: 31 :

33. It is true that Ex.D.1 was executed on

09.10.2002 and that it was registered at 5.45 pm on

10.10.2002. According to the appellant’s counsel, document

was registered after business hours of the Sub-Registrar’s

office. This cannot be a ground for invalidating the entire

document. There is no bar for registration of a document

after office hours, it is for the registering officer to decide

whether a document can be accepted for registration after

office hours or not. The document shows that the document

was presented at 5.45 p.m. for registration. It means to say

that the parties might have gone to the office much before

that time and for this reason the Sub-Registrar might have

entertained the registration. Section 23 of the Indian

Registration Act makes it very clear that a document has to

be presented for registration within 04 months from the date

of execution. For this reason, if the document was registered

on 10.10.2002, it does not invalidate the document.

34. The two judgments cited by the appellant’s

counsel, viz., Nand Lal Kapur and others v. Lakshamma

(since deceased by LRs and others), and Kenchawwa V.

Amagonda are not applicable to the present case. In the

: 32 :

first judgment, the facts are that defendants No.1 and 2

deposed that the contents of the document were not

explained to them and this evidence was not challenged in

the cross-examination. In the second judgment, the plaintiff

took a specific stand in the plaint and also deposed that she

did not execute the suit document. Same is not the position

here in the present case. As discussed above, the plaintiff

had the knowledge of the document going to be effected and

that she has deposed that she did put her thumb impression

on the document.

35. The finding of the First Appellate Court is that

Ex.D.1 is a family arrangement or settlement. It has relied

on the judgment of the Hon’ble Supreme Court in the case of

Ram Charan Das v. Girija Nandini Devi and others (AIR

1966 SC 323). The clear finding of the First Appellate Court

is extracted here:-

“34. In the present case, the intention was to

see that the differences amongst plaintiff and

defendants were amicably settled, and precisely for

that reason the parties referred the matter to

Panchayatdars, namely, DW.2, DW.3 and one Anant

Joshi. Said persons were those on whom the parties

had confidence. Said persons did not have any

personal interest in the subject matter of the suit.

: 33 :

Those persons thought it fit that the properties be

divided between defendants 1 and 2, and that the

plaintiff be given right of residence in the house which

is situated in the 1st Floor at Kadolkar Galli property.

Their decision was accepted and it is only after the

said acceptance the document Ex.D.1 came to be

executed. Mere allegation that there has been unequal

distribution of share is no ground to impeach such a

family arrangement.”

36. The Hon’ble Supreme Court in the case of Kale

and others (Supra), a judgment cited by the respondent’s

counsel, has held as below :-

“19. Thus it would appear from a review of the

decisions analysed above that the Courts have taken

a very liberal and broad view of the validity of the

family settlement and have always tried to uphold it

and maintain it. The central idea in the approach

made by the Courts is that if by consent of parties a

matter has been settled, it should not be allowed to

be re-opened by the parties to the agreement on

frivolous or untenable grounds.”

37. In the light of the principles laid by the Hon’ble

Supreme Court, if the whole case is examined, I am too of

the opinion that Ex.D.1 is actually a family settlement

: 34 :

though captioned as partition deed. Just because

Rs.50,000/- and right of residence till her lifetime has been

given to plaintiff, it cannot be said that the plaintiff did not

agree for such an arrangement. The evidence is to the effect

that she did agree for such an arrangement. An amount of

Rs.50,000/- given to plaintiff may not be available in the

form of a deposit or a security. But it could be the amount

agreed by defendants No.1 and 2 to be given to the plaintiff.

P.W.1 has been cross-examined by the counsel for defendant

No.2 also. In this cross-examination, a suggestion is given to

P.W.1 that defendant No.2 was ready to give his part of

Rs.25,000/-. So this suggestion implies that each of

defendants 1 and 2 agreed for paying Rs.25,000/- to the

plaintiff. Merely because Rs.50,000/- is shown as a property

in Ex.D.1, the whole document cannot be looked with

askance. This was the arrangement that the plaintiff and

defendants agreed to and it cannot be made ineffective on

the basis of grounds urged by the appellant’s counsel.

38. The appellant’s counsel raises another question

of law alternatively to the points already referred and this

question, which appears to be substantive, touches

: 35 :

applicability of Section 14(1) of the Hindu Succession Act. He

invoked Order XLI Rule 33 of C.P.C. to consider the case of

plaintiff within the parameters of Section 14(1) of the Hindu

Succession Act, in that the limited life interest given to her

under Ex.D.1 in a residential premises actually allotted to

defendant No.1 enlarges into her absolute estate. To

substantiate his argument that even at the stage of second

appeal, the powers under Order XLI Rule 33 of C.P.C. can be

exercised, he has placed reliance on the judgments of the

Hon’ble Supreme Court, namely, K. Muthuswami Gounder

v. N. Palaniappa Gounder [(1998) 7 SCC 327],

C.Cheriathan v. P. Narayanan Embranthiri [(2009) 2

SCC 673], Ramachandra Nathu Ghadage v. Rajaram

Nathu Gadage [2008 (2) Mh.L.J.754] and Umakanta Rao

v. Lalitha Bai (ILR 1988 KAR 3067).

On the point of applicability of Section 14(1) of Hindu

Succession Act, he has referred to the decisions – 1) Dr.

Mahesh Chand Sharma v. Raj Kumari Sharma (Smt) and

others [(1996) 8 SCC 128] and 2) Chellammal and

another v. Valliammal (1990 Mad.L.W. 588).

: 36 :

39. Meeting this argument, the respondents’ counsel

argued that applicability of Section 14(1) of the Hindu

Succession Act must be examined in the light of right of the

plaintiff before 1956. Here, the plaintiff had 1/3rd equal

share in all the suit properties and she voluntarily gave up

her share by taking Rs.50,000/-. Right of residence given to

her is in the property of defendant No.1. Defendant No.2 has

also taken equal half share. Therefore, her case squarely

falls under Section 14(2) and not under Section 14(1) of the

Hindu Succession Act. He also argued that the plaintiff is no

longer residing in the house; she voluntarily vacated the

house as can be gathered from the oral evidence, and when

she no longer possesses the house, she cannot take shelter

under Section 14(1) of the Hindu Succession Act. He has

garnered support from the judgments of the Hon’ble

Supreme Court in the cases of Kothi Satyanarayana v.

Galla Sithayya and others (AIR 1987 SC 353) and Himi

D/o. Lachhmu and another v. Hira Devi widow of Budhu

Ram and others (AIR 1997 SC 83).

40. On these points of arguments, firstly it has to be

stated that there is no impediment for invoking Order XLI

: 37 :

Rule 33 of C.P.C. even at the stage of second appeal. Order

XLII Rule 1 of C.P.C. states that, so far as may be Order XLI

of C.P.C. shall apply to appeals from appellate decrees. If the

facts and circumstances are as such that in the second

appeal, after hearing on the substantial question of law, if it

is possible to come to a conclusion that the relief requires to

be moulded in tune with actual relief that ought to have

been granted, certainly Order XLI Rule 33 of CPC can be

invoked.

41. In Vaddeboyina Tulasamma and others v.

Vaddeboyina Sesha Reddi (AIR 1977 SC 1944), the

Hon’ble Supreme Court has interpreted Section 14(1) and (2)

of Hindu Succession Act, what is held is as below:-

“Sub-Section (1) of Section 14 is large in its

amplitude and covers every kind of acquisition of

property by a female Hindu including acquisition in

lieu of maintenance and where such property was

possessed by her at the date of commencement of

the Act or was subsequently acquired and possessed,

she would become the full owner of the property.

Sub-Section (2) is more in the nature of a proviso or

exception to sub-Section (1). It excepts certain kinds

of acquisition of property by a Hindu female from the

operation of sub-Section (1) and being in the nature

of an exception to a provision which is calculated to

: 38 :

achieve a social purpose by bringing about change in

the social and economic position of woman in Hindu

society, it must be construed strictly so as to impinge

as little as possible on the broad sweep of the

ameliorative provision contained in sub-section (1). It

cannot be interpreted in a manner which would rob

sub-section (1) of its efficiency and deprive a Hindu

female of the protection sought to be given to her by

sub-section (1).

Sub-section (2) must, therefore, be read in the

context of sub-section (1) so as to leave as large a

scope for operation as possible to sub-section (1) and

so read, it must be confined to cases where property

is acquired by a female Hindu for the first time as a

grant without any pre-existing right, under a gift,

will, instrument, decree, order or award, the terms of

which prescribe a restricted estate in the property.

Where, however, property is acquired by a Hindu

female at a partition or in lieu of right of

maintenance, it is in virtue of a pre-existing right

and such an acquisition would not be within the

scope and ambit of sub-section (2), even if the

instrument, decree, order or award allotting the

property prescribes a restricted estate in the

property.”

42. In Chellammal v. Valiammal, (Supra) the

Hon’ble Supreme Court has held as below:-

“15. It is settled law that if a partition deed or

any other instrument only recognised a pre-existing

right of the widow, it is not a case of the widow

: 39 :

'acquiring' the property as contemplated under that

sub-Section and that under such circumstances that

sub-Section would have no application. But when

S.14(1) speaks of a female Hindu acquiring property

before or after the commencement of the Act, the

question is whether the acquisition contemplated

should necessarily be without any preexisting right

whatsoever. The explanation to S.14(1) defines the

word 'property' occurring in that sub-Section as

including both moveable and immoveable property

acquired by a female Hindu by inheritance or devise,

or at a partition, or in lieu of maintenance or arrears

of maintenance etc. The contention on behalf of the

plaintiff-respondent is that in this case, in any event,

there having been a partition (whether the widows

were entitled to enter into a final and absolute

partition or not) in the year 1943, it must be held

that the plaintiff acquired the suit properties under

the said partition as contemplated under S.14(1) and

as she is in possession, her widow's estate became

an absolute estate. However, the contention on

behalf of the appellants is that the plaintiff did not

'acquire' the suit properties under the partition

inasmuch as she along with the first defendant had

inherited a widow's estate in the properties on the

death of their husband. But it should be

remembered that the explanation to S.14(1)

specifically refers to acquisition of properties under a

partition. One can get a share under a partition only

if he or she had some pre-existing right in the same.

It is true that in a partition in a family, a woman may

: 40 :

be allotted certain properties even though she had no

pre-existing right to a share because of her right to

maintenance or arrears of maintenance. But as

already seen the explanation to S.14(1) specifically

refers to property acquired in lieu of maintenance or

arrears of maintenance apart from property acquired

at a partition. What I stress is that the words

'acquired by a female Hindu......... at a partition'

would not refer to properties given to a female Hindu

(even though it might be under a partition deed) in

lieu of maintenance or arrears of maintenance, for

the simple reason, the explanation refers to

acquisition of properties in lieu of maintenance or

arrears of maintenance as distinct from property

acquired at a partition. If a female Hindu does not

have a pre-existing right to a share and she is not

given property in lieu of maintenance or arrears of

maintenance, but still if property is given to her

under a partition deed it would be a case of pure gift.

The mere fact that the property is given to the female

Hindu under a partition deed would not mean that

she did not acquire the property by way of gift and

that she so acquired 'at a partition'. I am of the view

that the words 'acquired by a female Hindu...... at a

partition' do not mean that she should not have had

any pre-existing right in the property.”

43. The learned counsel for appellant has referred to

para 28 of the judgment in the case of Dr. Mahesh Chand

Sharma’s case (Supra). It is as below:-

: 41 :

“28. Now, we come to the third important

event, viz., the enforcement of the Hindu Succession

Act and its effect. The Act came into force in June,

1956. By operation of Section 14 of the said Act, the

right of residence given to Satyawati in the first floor

of the Doctor's Lane house ripened into an absolute

title inasmuch as the said right was given to her in

recognition of a pre-existing right to maintenance

inhering in her. Even under the Hindu Law obtaining

prior to the enforcement of Hindu Adoptions and

Maintenance Act, 1956, the son was under a

personal obligation to maintain his mother and he

was bound to maintain her whether or not he

inherited property from his father. [See Para 548 of

Mulla's Hindu Law at P.552 (16th Edn.)]. Under the

settlement, Satyawati was given not only the right of

residence in the first floor but also a sum of Rs.125/-

per month in cash towards her maintenance. It was

further provided under the settlement that if

Satyawati did not intend to reside in the aforesaid

portion, the first defendant shall pay her Rs.150/-

per month as maintenance instead of Rs.125/- per

month. This clearly indicates that the right of

residence was given to her in lieu of and in

recognition of her pre-existing right to maintenance.

Once this is so, it is sub-Section (1) of Section 14

that applies and not sub-Section (2) vide V.

Tulasamma v. V. Sesha Reddi. It has recently been

held by a Bench of this Court (S.P. Bharucha, J. and

one of us, S.B. Majmudar, J.) in Mangat Mal v. Punni

Devi that a right of residence given for life to a female

: 42 :

Hindu in a property plus a sum of money in lieu of

her right to maintenance ripens into full ownership

on the coming into force of the Act. Accordingly, it

must be held that on the date of coming into force of

the Hindu Succession Act, 1956, Satyawati became

the absolute owner of the first floor of the Doctor's

lane house property.

44. The Hon’ble Supreme Court in Kothi

Satyanarayanan v. Galla Sithayya and others (AIR

1987 SC 353) had an occasion to examine the applicability

of Sections 14(1) and 14(2) of the Hindu Succession Act in

the light of settlement deed. What is held by Hon’ble

Supreme Court is as below:-

“5. The Settlement Deed is an instrument

contemplated under sub-Section (2) and admittedly

it created a restricted estate in favour of the widow.

Therefore, sub-Section (1) of Section 14 would not be

attracted. The submission of the appellant's learned

counsel that the Settlement deed brought the

properties covered by it in exchange or in lieu of

properties unauthorisedly alienated by Ramamurty

and as the widow had full title in the alienated

property, title must be held to have accrued in favour

of the widow in the properties covered by the

settlement cannot be accepted.”

: 43 :

45. In Himi D/o. Lachhmu and another, (AIR

1997 SC 83), following the principles enunciated in V.

Vaddeboyina Tulasamma’s case (supra), the effect of

compromise in a suit was considered for applying Section 14

of the Hindu Succession Act, and what is held in this regard

is as follows:-

“Applying the aforesaid settled legal position to

the facts of the present case it must be held that the

Compromise Decree for the first time created a right

in favour of Bai Utti to remain in possession of the

property belonging to Bai Lachhmu only during her

lifetime and as that right was conferred for the first

time under the Consent Decree and was not in lieu of

any pre-existing right of Bai Utti in Bai Lachhmu`s

property Section 14 sub-Section (2) applied to the

facts of the case and not Section 14 sub- Section (1).

It is difficult to appreciate how the High Court

persuaded itself to hold that as the Will was not

proved on record and as the donees by claiming the

suit properties from the donor Bai Utti were

strangers to the Consent Decree they were not bound

by the admission of Bai Utti in the Consent Decree. It

is obvious that the contesting respondents herein

who were donees of the properties could not claim a

better title to the suit properties than what was

available to the donor Bai Utti. If Bai Utti was not the

full owner of the properties she had no right to gift

away these properties in favour of the respondent-

donees. They could not be said to be strangers to the

: 44 :

Consent Decree, on the contrary, they were claiming

through one of the parties to the Consent Decree,

namely, Bai Utti. The obligations flowing from the

Consent Decree and which were binding to the donor

Bai Utti would necessarily bind the donees, namely,

the respondents who stepped in the shoes of Bai

Utti. They cannot claim any better right than what

the donor had only a personal right to occupy the

properties during her lifetime, she could not have

conveyed any title of the properties to the donees. It

is equally difficult to appreciate how the learned

Single Judge of the High Court could hold that

admissions of the predesor-in-title of the respondent-

donees were not binding on the respondents. For all

these reasons, therefore, it must be held that the

High Court was in error in interfering with the

Decree for possession as passed by the Trial Court

and as confirmed by the First Appellate Court by

holding that Section 14 sub-Section (2) of the Act

was not applicable to the facts of the present case

and Bai Utti had become the full owner of the suit

properties pursuant to the said provision.”

46. On analysis of the principles, it can be said that

if a limited right given to a woman in a property should

enlarge into her absolute estate in accordance with Section

14(1) of the Hindu Succession Act, she must have a pre-

existing right. If a limited right is created independently of

pre-existing right, Section 14(2) of the Hindu Succession Act

: 45 :

comes in operation. If limited right over a property is

conferred on a woman through settlement or compromise,

Section 14(2) applies and not Section 14(1). If a woman

relinquishes her pre-existing right when a settlement or

compromise takes place, and during that settlement or

thereafter, a life estate is created, it amounts to creation of a

right anew in a woman and Section 14(2) is applicable. In

fact, the Hon’ble Supreme Court in the case of Dr. Mahesh

Chand (Supra), has recognized the effect of settlement and

held as below:-

“30. We may pause here and append a note of

explanation. It is true that under the 1942 Will,

the bequest to Satyawati was only for her life and

the bequest to "the legal heirs of the testator”, i.e.,

to the first defendant, vested in him on the death

of the testator, as held by us and for the reasons

assigned hereinbefore. But all this is subject to

the statutory provisions contained in Section

14(1) of the Hindu Succession Act. This statutory

provision supersedes the recitals in the Will. By

virtue of Section 14(1) of the said Act, the limited

estate of Satyawati (given to her under the 1942

Will) would have ripened into absolute estate if

Satyawati had been ‘possessed’ of the entire

Doctor's Lane house on the date of

commencement of the Hindu Succession Act. But

she was not. She had given up her possession

: 46 :

and right to possession over the First floor under

the 1955 Settlement. She was ‘possessed’ of only

the first floor of the house. Secondly, and more

important, first defendant is basing his title to the

Doctor's Lane house on the 1955 settlement. As

stated hereinabove, both Satyawati and the first

defendant arrived at a particular settlement

notwithstanding their respective claims and

contentions. Satyawati never challenged the said

settlement during her lifetime. The settlement

cannot, therefore, be held to be involuntary or

inoperative. Satyawati, in fact, acted for a number

of years as the General Power of Attorney of her

son, the first defendant, and managing his

properties in India. Merely because in these

proceeding, the 1942 Will is held to be the last

and valid Will of Ram Nath, the settlement of

1955 cannot be ignored or brushed aside. It is

also nobody's case that the settlement was not

bonafide or that it was not acted upon. For these

reasons, it must be, and is, held that Satyawati

became the absolute owner only of the first floor

of the Doctor's Lane house - and not of the whole

house.”

(underlining by me)

47. Harking back to the facts of the instant case, by

being a party to Ex.D.1, the plaintiff impliedly relinquished

her right for equal share in the suit properties and received

an amount of Rs.50,000/- from defendants No.1 and 2. As

: 47 :

has been held already, Ex.D.1 is a family settlement. Right of

residence given to plaintiff till her lifetime in a house allotted

to the share of defendant No.1 is by virtue of settlement only

and not in recognition of her pre-existing right. If at all she

needs to be maintained, the primary obligation is on her

natural son i.e. defendant No.1. If defendant No.1, her

stepson, agreed for accommodating her till her lifetime in a

house allotted to him, it is nothing but permitting her to stay

there, and nothing more. Probably, the position would have

been otherwise, if the house was allotted to plaintiff till her

life time, without allotting it to the defendant No.1. In these

circumstances, the plaintiff cannot claim to have become

absolute owner of the house taking shelter under Section

14(1) of the Hindu Succession Act. I have no hesitation in

also expressing my opinion that neither Section 14(1) nor

14(2) of the Hindu Succession Act gets attracted when

defendant No.1 allowed the plaintiff to stay in his house. If

at all, Section 14 of the Hindu Succession Act has to be

applied, it’s sub-Section (2) that can be applied here.

48. From the above discussion, I arrive at a

conclusion that the appeal should fail, accordingly appeal is

: 48 :

dismissed confirming the judgment of the First Appellate

Court. There is no order as to costs.

Sd/-

JUDGE

yan